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Emperor Vs. Lumbhardhar Zutshi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 385 of 1946
Judge
Reported in(1947)49BOMLR609
AppellantEmperor
RespondentLumbhardhar Zutshi
Excerpt:
criminal procedure code (act v of 1898), section 197-government of india act (26 geo. v, c. 43), section 270-government servant-offence committed by-' acting or purporting to act in the discharge of his official duty '-sanction of government-acceptance of bribe-prosecution for-indian penal code (act xlv of 1860), section 161.;a government officer accepting an illegal gratification for forbearing to do an official act is not 'acting or purporting to act in the discharge of his official duty', and can be prosecuted for the offence of bribery punishsble under section 161 of the indian penal code, 1860, without the sanction referred to in section 197(1) of the criminal procedure code, 1898.;h.h.b. gill v. emperor (1946) 47 cr.l.j. 662, dissented from.;khurshed ahmad v. amanulla [1940] 2 cal......stone, c.j.1. this is an appeal by accused no. 1, lumbhardhar zutshi, from a conviction by the chief presidency magistrate under section 161 of the indian penal code, 1860, that is to say, the receipt of illegal gratification by a government servant, and the sentence of two years' rigorous imprisonment passed on him on june 19, 1946. accused no. 2, chimanlal mohanlal, who was charged with abetment of the offence of accepting illegal gratification, was also convicted, but was sentenced to one day's simple imprisonment and a fine of rs. 1,000 by the chief presidency magistrate. he has not preferred any appeal; no doubt, that is because of the lightness of his sentence, in itself difficult to understand as the chief presidency magistrate has described the offence committed by him as being,.....
Judgment:

Stone, C.J.

1. This is an appeal by accused No. 1, Lumbhardhar Zutshi, from a conviction by the Chief Presidency Magistrate under Section 161 of the Indian Penal Code, 1860, that is to say, the receipt of illegal gratification by a Government servant, and the sentence of two years' rigorous imprisonment passed on him on June 19, 1946. Accused No. 2, Chimanlal Mohanlal, who was charged with abetment of the offence of accepting illegal gratification, was also convicted, but was sentenced to one day's simple imprisonment and a fine of Rs. 1,000 by the Chief Presidency Magistrate. He has not preferred any appeal; no doubt, that is because of the lightness of his sentence, in itself difficult to understand as the Chief Presidency Magistrate has described the offence committed by him as being, 'no less heinous than accused No. 1'. We intend to give certain directions with regard to accused No. 2 at the conclusion of this judgment.

2. Mr. M.C. Setalvad, who appears in this Court for the appellant, submits, two main grounds of appeal, first, that the whole proceedings before the Chief Presidency Magistrate were invalid and ineffectual because no sanction to the prosecution was ever given by the Governor General in Council under Section 197 of the Criminal Procedure Code, and that accordingly the whole proceedings must be quashed and the conviction and sentence of accused No. 1 set aside; secondly, if this first point fails, then there is an appeal on the facts and the merits of the case. The only point, which has so far been argued before us, and which is dealt with by this judgment, is the first ground of appeal, which is primarily a question of law. If the appellant succeeds on this first submission, then the second ground of appeal would not arise at all.

3. Section 197 of the Criminal Procedure Code is as follows:

(1) When any person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a Provincial Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person employed in connection with the affairs of the Federation, of the Governor General exercising his individual judgment; and

(b) in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province exercising his individual judgment.

(2) The Governor General or Governor, as the case may be, exercising his individual judgment may determine the person by whom, the manner in which, the offence or offences, for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

(3) In relation to the period elapsing between the commencement of the Federation, the references in this section to the Federation and to the Governor General exercising his individual judgment shall be construed as references to the Governor General in Council.

4. It is not disputed that the appellant is a Government servant, and that he is a person in respect of whom it is for the Governor General in Council to give sanction, if sanction be needed at all. The appellant was in fact an Assistant Director of Metals whose duties arise under the Non-ferrous Metals Control Order, 1942, contained in a Notification of the Government of India, Supply Department, No. 1134 of November 25, 1942. He is an Officer authorised under Clause 7 of that Notification to enter and inspect premises, in which he has reason to believe, either that any controlled non-ferrous metal is stocked or sold or that any undertaking described in Clause 4 of the Notification is carried on, such an undertaking involving the use or consumption for the purpose of any manufacturing process of more than 50 lbs. of any of the other controlled non-ferrous metals in any one calendar month, except under the conditions therein laid down.

5. The whole of this Notification is concerned with the regulation and control of non-ferrous metals, and the facts, briefly stated, with reference to the charge against the appellants are these. Having discovered that one Balwantram was in breach of the Notification, the appellant, through the intermediary of the second accused, accepted a bribe in order to hush up the prosecution of Balwantram. The actual form of the charge being that on March 8, 1948, at Bombay, being a public servant;

You directly accepted from Chimanlal Mohanlal (accused No. 2) for Balwantram the sum of Rs. 15,000 as a gratification, other than legal remuneration as a motive for forbearing to do an official act, viz. the prosecution of Balwantram Gangaram Vakharia, and thereby committed an offence punishable under Section 161 of the Indian Penal Code and within my cognizance.

6. The appellant is said to be also a Government servant within the meaning of Section 270 of the Government of India Act, 1985, and sanction to the prosecution of him was in fact given under that section by the Governor General in his discretion. Whether such sanction was necessary, it is not for us to determine, and the only relevance of such sanction is that it was suggested in this Court that as sanction under Section 270 of the Government of India Act had been given, it was not necessary to give a further sanction under Section 197 of the Criminal Procedure Code, But this clearly is not so, as the sanction under Section 270 of the Government of India Act, has to be given by the Governor General in his discretion, whilst the sanction under Section 197 of the Criminal Procedure Code would have to be given by the Governor General in Council.

7. The question with regard to the necessity for sanction under Section 197 of the Criminal Procedure Code has been the subject matter of numerous decisions of the High Courts of this country. The defence of want of sanction has been the last resort of many a dishonest servant of Government, and, be it noted, as indeed is the experience in this Court, that this point, going as it does to the root of jurisdiction, is often not taken at all or is not seriously pressed in the trial Courts. Experience shows that it is often reserved by an accused Government servant until the Court of Criminal Appeal, when he has failed on the facts and the merits of the case, and in the hope and expectation that if he succeeds at this late stage, the authorities will have become tired of the prolix proceedings and will not start the prosecution all over again. The defence of want of sanction is now pressed in this case with vigour and ingenuity. Judges and Magistrates cannot be too strongly urged, that whenever a Government servant is charged with an offence, they should consider at the very earliest possible stage, whether sanction under either of the two sections I have mentioned is in law necessary, and whether if it is, it has been duly given, and they should express a definite opinion on the question. In this case the record shows that the point was taken before the Chief Presidency Magistrate, but his judgment contains no trace of it, far less the expression of any opinion.

8. If the problem we have to consider could be approached free from the numerous authorities, I must confess that I should not feel any great difficulty in construing the words, 'an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'; which words appear to me to be both clear and unambiguous. Mr, Justic Varadachariar in the Federal Court, in Hori Ram Singh v. The Crown [1939] F.C.R. 159 has described the authorities as being (p. 187):

not by any means uniform. In most of them, the actual conclusion will probably be found to be unexceptionable in view of the facts of each case; but, in some, the test has been laid down in terms which it is difficult to accept as exhaustive or correct.

9. It is the application of Section 197 of the Criminal Procedure Code, to the circumstances of the particular case, which is the real cause of the difficulty, and once that has been said, it is obvious that to attempt any examination of all the cases in which the facts are entirely different, would serve no useful purpose at all.

10. We have been referred to no decision, either of the Privy Council or of the Federal Court, in which Section 197 of the Code has been construed, though in two cases in the Federal Court, one of them being Hori Ram Singh's case, the true construction of Section 270 of the Government of India Act, 1935, came under consideration, and in these cases certain obiter dicta, with regard to Section 197 of the Code, fell from their Lordships. Although such dicta is not a decision which is binding upon us under Section 212 of the Government of India Act, 1935, it is entitled to the greatest possible respect, and I propose to refer to these two cases later in this judgment. There are, however, four reported cases from other High Courts, as to the applicability of Section 197 of the Code to a charge of accepting illegal gratification. Two of these cases come from Calcutta, one from Rangoon and one from Patna.

11. In order of date, the first case is U Tun Kywe v. The King [1939] Ran. 72 in which ease members of a District Council received a bribe in consideration of their agreeing to vote in a particular way with regard to the appointment of a permanent Overseer. The Chief Justice Sir Ernest Goodman Roberts said (p. 80):.the applicants were acting in direct opposition to their duty, and their office merely provided them with the opportunity of committing the offence: their actions were not such as to cause another person to think that they were acting in the discharge of their duty. I am certainly unable to hold that the complainant honestly believed that it was part of the duty of a District Councillor to demand and receive a bribe from a candidate for employment under the Council. They knew, and he knew, that they were doing a wrong thing, not in the course of their duties or in the purported pursuance of them at all, but entirely outside them: they were using their position as members of the Council (if the complaint and the evidence in support of it is believed) to obtain an illegal gratification.

12. The second case is Khurshed Ahmad v. Amanulla [1940] 2 Cal. 162 which was a case of the prosecution of a member of the Debt Settlement Board for the offence of illegal gratification. The Chief Justice Sir Harold Derbyshire said (p. 164):

I fail to see how a member of a Debt Settlement Board, who so turns his back on his duty, can be said to be acting or purporting to act in the discharge of the duties of a member of the Board of Debt Settlement. In my opinion, sanction under Section 197(1) of the Criminal Procedure Code was not necessary before this prosecution was begun.

13. The third case is Province of Bihar] v. Rameshwar I.L.R.(1944) Pat. 738 which is the case of the prosecution of an Assistant Price Control Officer for receiving illegal gratification to hush up a prosecution, and Mr. Justice Agarwala said (p. 748):

To me it is inconceivable that the act of taking a, bribe can ever be said to be an act done in the execution of duty or purporting to be done in the execution of duty. One has only to imagine the state of mind of the two parties concerned in such a transaction to see how wrong any other interpretation would be. The person demanding or accepting a bribe is fully conscious of the fact that in doing so he is neither performing an official act nor purporting to perform such an act, and the person who offers or pays a bribe is equally conscious that the person receiving the payment is not receiving it for doing or purporting to do an official act.

14. The fourth case is H.H.B, Gill v. Emperor (1946) 47 Cr.L.J. 662 . In that case the accused being a Government servant was charged with another person with conspiracy to secure bribes, and in fact sanction for the prosecution was given under Section 197 of the Code. The High Court set aside the order of acquittal of the trial Court and ordered a retrial at which the accused was found guilty under Section 165, and not, under Section 161, of the Indian Penal Code, under which he was originally charged. In appeal, the Government servant submitted that the second trial was a nullity, because a fresh sanction to his prosecution had not been obtained, and in negativing this contention the Court also considered the necessity for a sanction under Section 197 of the Code, at all, and held contrary to the decision in Khurshed Ahmad's case and applying the reasoning of Pollard v. Satya Gopal (1943) 45 Cr.L.J. 224 that a sanction was necessary, but that it had in fact been given. Towards the end of his judgment Blank J. said (p. 672):

On this part of the case we have detailed the arguments and the replies to them somewhat fully. We do not propose to discuss them anew. Suffice it to say that we follow the decision in Criminal Revision No. 747 of 1945 (Harendra Chandra Barori v. Emperor). In our view, sanction under Section 197 of the Criminal Procedure Code was required in the present case; such a sanction is on record.

15. The case of Harendra Chandra Baron v. Emperor is unreported and is not before us. But the circumstances of Pollard's case were entirely different, because in that case the accused who was a Police Officer was charged with committing an assault. With the judgment of Blank J. Ellis J. agreed. With the utmost respect to these two learned Judges, it is my opinion, that their decision, in so far as it lays down that sanction under Section 197 is essential, in cases in which a Government servant is accused of accepting illegal gratification, is not good law. That case went to Federal Court (Criminal Appeal No. 2 of 1946 at present unreported) but Zafrulla Khan J., in delivering the judgment of the Court, pointed out that it was unnecessary to enter upon any discussion of Section 197 as sanction had in fact been given.

16. Each case must be examined in the light of the offence alleged against the accused in order to ascertain whether Section 197 of the Code is applicable to the particular case, for it is not in respect of every offence committed by a Government servant that he is acting or purporting to act in the discharge of his official duty. Any such general proposition could not be sustained.

17. I cannot see how a Government servant in proposing, negotiating or accepting illegal gratification can ever be said to be acting or purporting to act in the discharge of his official duty. His actions are a complete negation of it, for he is not being charged with the resultant breach of duty for doing or abstaining from doing an official act. Cases in which he is so charged stand on a different basis, for it must follow that in such cases the duty and the offence are so connected as to form the same transaction. . An example of such a position is to be found in cases in which it is the duty of a Government servant to keep accounts, and the offence with which he is charged is that of making false entries in such accounts, for the making of an entry is his duty, the offence is that he made a false entry instead of a true one. The breach of his duty and the offence are inseparable: see Hori Ram Singh's case, in which case Mr. Justice Varadachariar said (p. 186):

In the charge under Section 477A (falsification of accounts), the official capacity is involved in the very act Complained of as amounting to a crime, because the gravamen of the charge is that the accused acted fraudulently in the discharge of his official duty.

18. The case before us is entirely different. What the appellant did was not colore officii, for the whole of a bribery transaction is conceived in fraud, nurtured on fraud and consummated in fraud. No part of it can ever be or purport to be an official act. The only relevance of the official duty is the opportunity it provides for this type of crime. If I may respectfully so say, no better illustration can be given than that envisaged by Mr. Justice Varadachariar in Hori Ram Singh's case (see p. 188) of a Medical Officer, who while on duty in a hospital, steals a jewel from the person of one of the patients, for the crime of theft has no connection with the official duty of the Medical Officer; it is only the opportunity of access to the patient which affords the entry for the commission of the crime.

19. In the case before us the bribe was accepted by the appellant, if accepted it was, in order that he should shut his eyes, when it was his duty to keep them open. It was not paid to him in respect of his doing or purporting to do his official duty, but for abstaining from so doing. To a bribery transaction two parties at least are necessary, the payer and the Government servant who accepts the bribe, both of them know at all stages, that the Government servant is not acting or purporting to act in his official duty, but in betrayal of it. I cannot see how in any circumstance, even when the payer of the bribe is the ignorant dupe of the Government servant, it can ever be said that the Government servant is acting or purporting to act colore officii.

20. It remains to consider the two cases in the Federal Court, both of them being in respect of Section 270 of the Government of India Act, 1935. I have already made reference to one of these cases, viz., Hori Ram Singh's case. In that case Mr. Justice Sulaiman said (p. 179):

For instance, if a public servant accepts as a reward a bribe in his office while actually engaged in some official work, he is not accepting it even in his official capacity, much less in the execution of any official duty, although it is quite certain that he could never have been able to take the bribe unless he were the official in charge of some official work. He does not even pretend to the person who offers the bribe that he is acting in the discharge of his official duty, but merely uses his official position to obtain the illegal gratification.

21. Mr. Justice Varadachariar, with whose judgment the Chief Justice Sir Maurice Gwyer expressed his entire agreement, after pointing out that the decisions under Section 197 of the Code can be roughly classified as falling into three groups so far as they attempt to state something in the nature of a test, continued (p. 187):

In one group of cases, it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it [cf., In re Abdul Khadir Saheb [1917] A.I.R. Mad. 344 Raja Rao v. Ramaswamy I.L.R(1927) . Mad. 754 Amanat Ali v. Emperor : AIR1929Cal724 ; King-Emperor v. Maung Bo Mating I.L.R(1935) Ran. 540 and Emperor v. Gurushidaya, Shantivirayya : AIR1939Bom63 ]. In another group more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence. It seems to me that the first is the correct view. In the third group of cases, stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed (see Gangaraju v. Venki I.L.R.(1928) Mad. 602 quoting from Mitra's 'Commentary on the Criminal Procedure Code'), The use of the expression 'while acting' etc. in Section 197 of the Criminal Procedure Code (particularly its introduction by way of amendment in 1923) has been held to lend some support to this view. While I do not wish to ignore the significance of the time factor, it does not seem to me right to make it the test.

22. The learned Judge then goes on to give the illustration of the Medical Officer and the theft of the jewel to which I have already referred.

23. The other Federal Court case is Lieutenent Hector Thomas Huntley v. King-Emperor [1944] F.C.R. 262 In that case the Government servant was charged with accepting illegal gratification and Mr. Justice Zafrulla Khan delivering the judgment of the Court said (p. 269):

In this case the act complained of was the act of receiving illegal gratification. That surely could not be an act done or purporting to be done in the execution of duty.

24. But in that case Section 197 of the Code was held to be inapplicable, and it was further held that it was unnecessary to decide whether the acts contemplated by Section 197 of the Code are the same as those covered by Section 270 of the Constitution Act. In so far as the dicta in these two cases is referential to the offence of accepting illegal gratification, they support the opinion stated by me above.

25. In my judgment no sanction was necessary in the case before us under Section 197 of the Code and we shall therefore proceed to dispose of this appeal on the facts and merits of the case; but before we so do, we observe that there has now been brought to the attention of this Court the sentence passed on accused No. 2 who paid the alleged bribe to the appellant (accused No. 1), and in exercise of our powers under Section 439 of the Code we direct that notice of enhancement of sentence be given to accused No. 2. The consequent review will come on at the same time as this appeal.

Lokur, J.

26. I agree.

27. The appellant, who was the Assistant Director of Metals (non-ferrous), in the Directorate General of Munitions Productions Department, searched the shop of one Balwantram Gangarara on March 1, 1945, and threatened to prosecute him for not reporting the stock of certain controlled articles in his shop. He then negotiated with Balwantram through one Chimanlal Mohanlal and eventually he accepted Rs. 15.000 from Balwantram as illegal gratification for refraining from prosecuting him. Police Inspector Quilter, who had been informed by Balwantram beforehand and had taken down the numbers of the currency notes to be given to the appellant, raided the appellant's house and Found those notes in his cupboard. He had already obtained the permission of the Chief Presidency Magistrate to investigate the case, and sent a charge sheet against the appellant and Chimanlal, after obtaining the consent of the Governor General under Section 270(1) of the Government of India Act. The two accused were tried by the Chief Presidency Magistrate. He convicted the appellant under Section 161 of the Indian Penal Code and sentenced him to rigorous imprisonment for two years. He convicted accused No. 2 Chimanlal under Section 161 read with Section 114 of the Indian Penal Code, and sentenced him to one day's simple imprisonment and a fine of Rs. 1000.

28. Mr. Setalvad, the learned Counsel for the appellant, contends that the trial of the appellant was bad for want of sanction under Section 197(1) of the Criminal Procedure Code. As this contention, if upheld, goes to the root of the learned Chief Presidency Magistrate's jurisdiction and vitiates the whole trial, arguments have been heard on that point alone at this stage.

29. Admittedly, the Governor General has,'in his discretion, given his consent to the prosecution of the appellant as required by Section 270(1) of the Government of India Act; but that cannot serve the purpose of the sanction under Section 197(1) of the Criminal Procedure Code, if such sanction be necessary. According to Section 197(3) of the Code the sanction under Section 197(1) has to be given by the Governor General in Council and the consent given by the Governor General in his discretion cannot make up for the absence of the sanction of the Governor General in Council.

30. There is some conflict of judicial opinion as to whether in a case like the present the sanction of the Governor General in Council is required under Section 197(1) of the Criminal Procedure Code. I need not refer to the cases prior to 1925, when the section was materially amended. The section as it stood before the amendment ran thus:

When any Judge or any public servant not removable from his office without the sanction of the Government of India or the Local Government is accused as such Judge or public servant of any offence, no Court shall take cognizance etc. etc....

31. The conflict centred round the interpretation of the words 'as such Judge or public servant', but the trend of the decisions was that sanction was required only when the offence to be tried was committed by a Judge or a public servant in his capacity as such Judge or public servant. To set the conflict at rest, the section was amended in 1925, and for the words 'is accused as such Judge or public servant of any offence', the following words were substituted:

Is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty.

32. This has obviously widened the scope of the protection intended to be given to a Judge or a public servant in the discharge of his official duty, and the nice question whether he was or was not accused as such Judge or public servant does not now arise.

33. Even after the amendment, there has been a good deal of controversy as to when an act alleged to amount to an offence can be said to have been committed by a Judge or a public servant 'while acting or purporting to act in discharge of his official duty.' The seeming conflict in some of the cases decided after the amendment of the section can be easily reconciled, if it is borne in mind that each case is decided on its own facts.

34. On a liberal interpretation of the amended section, in the light of the eases decided after 1925, it may be said that the privilege of immunity from prosecution without sanction extends only to acts which can be shown to be done in discharge of official duty, or to purport to be done in such discharge; but an offence arising out of abuse of official position by an act not purporting to be official does not require sanction under Section 197(1).

35. Before considering the reported cases cited at the bar, I think it appropriate at this stage to refer to Section 270(1) of the Government of India Act, Under that section the consent of the Governor General or the Governor of the Province, as the case may be, in his discretion is required for the institution of civil or criminal proceedings:

Against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown.

36. Although the wording of this section is slightly different from the wording of the amended Section 197(1) of the Criminal Procedure Code, yet as pointed out by Wassoodew J. in Emperor v. Vishnu Tatyba Naik : (1940)42BOMLR1193 the provisions of the two sections serve the same objects and are intended to protect public servants in the discharge of official duties, and, therefore, the interpretation of the provisions of the one will serve as a guide in the application of the provisions of the other. This is not disputed and both the sides freely referred to the cases under the provisions of the one or the other.

37. Whether an offence may or may not be said to have been committed by a Judge or a public servant while acting or purporting to act in discharge of his official duty is well illustrated by the case of Hori Ram Singh v. The Crown [1939] F.C.R. 159 . The accused in that case, who was a Sub-Assistant Surgeon in the service of the Punjab Government, had dishonestly misappropriated certain medicines entrusted to him in his official capacity, and also had omitted to record certain entries in the stock book of medicines belonging to the hospital in his charge. He was, therefore, prosecuted for criminal breach of trust under Section 409 of the Indian Penal Code, and for falsification of accounts under Section 477A of that Code. It was held that the consent of the Governor-General under Section 270(1) of the Government of India Act was required for his prosecution for the latter offence, but not for the former. In giving reasons for this distinction Sulaiman J. said (p. 178):

Obviously the section does not mean that the very act which is the gravamen of the charge and constitutes the offence should be the official duty of the servant of the Crown. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The words as used in the section are not 'in respect of any official duty 'but' in respect of any act done or purporting to be done in the execution of his duty.' The two expressions are obviously not identical....The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty, that is, in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say, under the cloak of an ostensibly official act, though, of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another the impression that he is so acting.

The section is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in the execution of his duty, which would not necessarily be the case merely because it was done at the time when he held such office, nor even necessarily because he was engaged in his official business at the time.

He further explained this as follows (p. 181):

Thus where it is his duty to maintain a record or a register...he makes some entries which are false to his knowledge, he is certainly purporting to act, though not actually acting, in the execution of his duty, because, he is making certain entries in the register, knowing them to be false. He is ostensibly professing to be discharging his official duty in maintaining the register, which he is bound to maintain correctly. In making the' entries he pretends or purports to act in the execution of his duty; but in point of fact he is acting in direct dereliction of it.

38. This lays down a sound test which should govern the decision of each case. Applying that test, it cannot be said that the appellant in this case took the illegal gratification in discharging or purporting to discharge his official duties. His omission to prosecute Balvantram was in his official capacity, but his acceptance of Rs. 15,000 was outside the scope of his official duty and was only a reason for not prosecuting Balvantram.

39. This was the view taken in Afzalur Rahman v. King-Emperor I.L.R.(1942) Pat. 76 where it was held that no sanction under Section 197(1) of the Criminal Procedure Code was required for the prosecution of a police-officer under Section 161 of the Indian Penal Code for taking illegal gratification to forbear to do an official act. Agarwala J. observed (p. 90):.an act which is the very contrary to the duties of a public servant could not be said to be done while acting or purporting to be done in the discharge of his official duties.

40. Following the principle laid down in Hori Ram's case, Zafrulla Khan J. said in Lieutenant Hector Thomas Huntley v. King-Emperor [1944] F.C.R. 262 :.to attract the provisions of this section [Section 270(1) of the Constitution Act] it was not sufficient merely to establish that the person proceeded against was a public servant and that while acting as a public servant, or taking advantage of his position as a public servant, he did certain acts; it must be established that the act complained of was an official act. In this case the act complained of was the act of receiving illegal gratification. That surely could not be an act done or purporting to be done in the execution of duty.

41. It was not expressly decided in that case whether the same reasoning would apply to the necessity of a sanction under Section 197(1) of the Criminal Procedure Code as such sanction was found unnecessary on two other grounds, but as I have already pointed out, the same reasoning would apply.

42. Hori Ram's case was recently followed by Spens C.J. in Sarjoo Prasad v. Emperor [1946] A.I.R.F.C. 25. Pollard's case (Pollard v. Satya Gopal : AIR1943Cal594 ), on which Mr. Setalvad has relied, can be easily distinguished. In that case, on the arrest of some students, a crowd followed the police and began to demonstrate when Mr. Pollard, who was the Superintendent of Police, ordered the complainant away; and when the complainant insisted on remaining in his compound, he slapped him and kicked him out. It was held that the Superintendent could not be prosecuted for assault without a sanction under Section 197(1) of the Criminal Procedure Code. Lodge J. observed (p. 609):

It seems to be clear that however unjustified Mr. Pollard's conduct may have been, there can be no doubt that he was not acting in any private capacity but was acting in discharge of his official duties.

43. Thus the decision turned on the particular facts of that case. In repelling the complainant's argument that it was not Mr. Pollard's duty to assault the complainant, and therefore Mr. Pollard was not acting in discharge of his duty when he assaulted him, Lodge J. said that Section 197 of the Criminal Procedure Code applies, 'when a public Officer does something which is not his duty;-provided that he does it while he is acting or purporting to act in the discharge of his official duties.' The acceptance of bribe by a public servant does not fall within this category.

44. The case of Khurshed Ahmad v. Amanulla [1940] 2 Cal. 162 is quite in point. There some members of a Debt Settlement Board were charged with taking illegal gratification for the purpose of showing favour to a party before the Debt Settlement Tribunal. In holding that no sanction under Section 197(7) of the Criminal Procedure Code was necessary, Derbyshire C.J. observed (p. 164):

I fail to see how a member of a Debt Settlement Board, who so turns his back on his duty, can be said to be acting or purporting to act in the discharge of the duties of a member of the Board of Debt Settlement.

45. This ruling was expressly dissented from in H.H.B. Gill v. Emperor (1946) 47 Cr.L.J. 662 on the ground that no authority was cited by Derbyshire C.J., and that the reasoning in it was fallacious. Blank J., who delivered the judgment, accepted the reasoning of Shesagiri Ayyar J. in Sankaralinga Tevan v. Avudai Ammal (1916) 17 Cr.L.J. 304 :

If this argument is pushed to its logical conclusion no public servant or Judge can have the safeguard of a sanction, as it is not within the powers conferred upon such an officer to commit an offence.

46. This reasoning would equally apply to the necessity of the consent under Section 270(1) of the Government of India Act and its fallacy can be seen from the decision in Hori Ram's case, where a distinction was made between the charge of falsification of accounts, which was held to require a sanction, and the charge of criminal breach of trust which did not require it. Moreover, Blank J.'s opinion on this point in Gill's case was obiter, as the necessary sanction had once been accorded for a previous trial and was still in force. Gill's case went in appeal to the Federal Court (Cri. Appeals Nos. II and III of 1946, decided on December 11, 1946) and as the sanction previously granted was held to be still effective, it was considered unnecessary to enter upon a discussion and determination of the question whether a sanction was necessary. Thus Blank J.'s view being obiter, I respectfully prefer to follow the view of Derbyshire C.J., in Khurshed Ahmad's case, especially because it accords with the view taken by this Court in cases like Narayan v. Yeshwank Dattatraya v. Annappa : AIR1928Bom352 , F.B., Emperor v. Hanmant : (1929)31BOMLR789 , Emperor v. Gulabmiya : (1930)32BOMLR1134 and Emperor v. Gurushidayya Shantivirayya : AIR1939Bom63 .

47. In this last mentioned case an officiating kulkarni was charged with criminal breach of trust in respect of the amount of land revenue collected by him, and it was held that the offence could not be said to have been committed by him while acting or purporting to act in the discharge of his official duty, and therefore no sanction of the Local Government under Section 197(1) of the Criminal Procedure Code was necessary.

48. Mr. Setalvad strongly relied upon the ruling in Ram Singh v. S.A. Rizwi I.L.R.(1934) Pat. 299. In that case a Deputy Magistrate, when engaged in realising some taxes had threatened some defaulters, had turned round and engaged himself with the complainant (who was not a tax-payer) and taken him to task for being near him in a particular manner. It was held that the alleged offence against the complainant was 'so connected with the performance of his official duty that it was impossible to say that it was an independent act in no way connected with the realization of the taxes, and that it did not matter that the Deputy Magistrate had absolutely no jurisdiction over the complainant. Muhammad Noor J. refused to accept the contention urged before him that even an offence committed purely on private account unconcerned with the official act would come under Section 197(1) of the Criminal Procedure Code, if and when the offence was committed, the Judge or public servant was engaged in the performance of official duty, and observed (p. 312):

must be so connected with the official duty as to become inseparable from it.

49. I respectfully agree with this, though I am afraid that the word 'connected' is likely to be misunderstood. Even in the case of criminal breach of trust, the offence can be said to be connected with the collection of the money misappropriated. Though the public servant collected the amount in the execution of his duty as a public servant, he cannot be said to be so acting or purporting to act when he misappropriated it. The words 'purporting to act' connote that the public servant means or intends or purports to act as such, or that his action conveys to the mind of another that he is acting as such. In accepting illegal gratification for doing or refraining from doing some official act, a public servant does not mean or intend or purport to act in the execution of his duty; on the contrary he intends to act in direct opposition to his duty, and his official position merely provides him with the opportunity for committing the offence. Nor is his action such as to cause another person to think that he is acting in the discharge of his duty.

50. I, therefore, agree with my lord the Chief Justice in holding that no sanction under Section 197(1) of the Criminal Procedure Code is required in this case.

51. This objection was specifically taken in the written statement of the accused, and we are told that it was raised and fully argued before the commencement of the trial. Yet the learned Chief Presidency Magistrate has not even referred to it in his judgment nor has he dealt with it by any separate order. An objection like this which goes to the very root of the Magistrate's jurisdiction should be heard and disposed of before the commencement of the trial. Otherwise, if the decision on the objection be left over till the end of the trial, and the objection is then upheld, the time and labour spent in the trial will have been unnecessarily wasted.

52. I agree that a notice of enchanoement of sentence should be issued to accused No. 2.

53. For the reasons stated in the accompanying judgments, the Court holds that no sanction was necessary, issues notice of enchancement of sentence on accused No. 2 and directs that the consequent review do come on at the same time as this appeal.


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